Landmark win against BHP in the High Court of Australia

Turner Freeman Partner, Annie Hoffman, brought a claim for Mr. van Soest against BHP in 2012 after he was diagnosed with mesothelioma, a deadly lung cancer caused only by exposure to asbestos.

Mr. van Soest was employed by BHP at their Whyalla Shipyard in 1962 for 11 weeks as a painter and docker. He worked on the construction of the PJ Adams where he worked in the vicinity of laggers installing asbestos insulation around pipes and boilers. Mr. van Soest was also required to assist the laggers on occasions to cut up and install insulation containing asbestos. BHP aggressively defended the case at trial. Although BHP admitted that Mr. van Soest had been exposed to asbestos dust at BHP, it argued that it could not have known that the level of exposure to asbestos dust that Mr. van Soest suffered was dangerous in 1962. At the time the National Health & Medical Research Council of Australia (“NHMRC”) had prescribed a limit of exposure to asbestos dust below which it was thought that there was little risk of contracting an asbestos related disease. BHP argued that Mr. van Soest’s exposure to asbestos dust at Whyalla did not exceed the NHMRC standard and therefore it was not required to do anything to protect Mr. van Soest from the dangers of asbestos.

The trial judge rejected this argument finding that because BHP did not measure the level of asbestos dust in the air on the PJ Adams, there was no way of knowing how much exposure to asbestos dust Mr. van Soest actually suffered. The court found, however, that it was known in 1962 that persons working in the ship building industry had contracted asbestos related diseases and that BHP should have been aware that workers like Mr. van Soest were at risk of exposure to asbestos dust. In the circumstances, the court found that BHP was required to do something to protect Mr. van Soest from exposure to asbestos, including providing him with a respirator or a warning in relation to the dangers of asbestos dust.

The trial judge’s decision was handed down on 17 June 2013. BHP appealed the decision and unfortunately Mr. van Soest passed away shortly after on 24 July 2013. Mr. van Soest’s son continued the fight against BHP in the Supreme Court of South Australia. He successfully defended BHP’s appeal, the Supreme Court handing down its decision on 19 December 2014 against BHP. Following this decision, BHP sought special leave to appeal to the High Court of Australia against the decision of the Supreme Court. This was BHP’s last roll of the dice in its efforts to avoid paying compensation to Mr. van Soest’s estate.

The application for special leave to appeal was heard in the High Court on 19 June 2015. Again, BHP argued that it did not have to do anything to protect Mr. van Soest from his exposure to asbestos dust on the PJ Adams in 1962. Chief Justice Robert French and Justice Stephen Gageler rejected BHP’s argument and dismissed its application for special leave to appeal. The decision marks an end to a three and a half year legal battle against the company. The case was run aggressively by BHP as a test case and is a culmination of a series of hard fought legal battles with BHP. The decision will have a significant impact on all current and future victims of asbestos disease from the Whyalla Shipyard, as well as other industrial users of the product.